Citation Nr: 20006562 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 10-29 550 DATE: January 27, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT In a letter dated February 2017, the Veteran was asked to provide information necessary to adjudicate his claim of entitlement to a TDIU, to include submitting a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability; more than a year has passed since he was sent this letter, and he has not submitted the requested evidence and information. CONCLUSION OF LAW By failing to submit requesting information and/or forms for critical evidence needed to properly adjudicate his claim for a TDIU, the Veteran has abandoned such claim, and his appeal in this matter must also be considered abandoned. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.340, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from December 1969 to October 1971, including combat service in the Republic of Vietnam and his decorations include the Purple Heart Medal. In July 2016, the Veteran testified during a video conference hearing held before a Veterans Law Judge. A transcript of that hearing is of record. In February 2018, the Veteran and his representative were notified that the Veterans Law Judge who conducted that hearing was no longer available to adjudicate the case. The Veteran was offered the opportunity for a new hearing. He did not respond to that correspondence and the notice was not returned to VA as undeliverable. As such, as noted in the May 2018 remand, the Board finds that the Veteran waived his right to a new hearing and will proceed with a decision in this case. 1. TDIU The issue of a TDIU was raised as a result of the Veteran’s statement at his hearing that he may have had to retire from his work due to his service-connected PTSD. When this case was last before the Board, the Board remanded for additional evidentiary development regarding a claim for TDIU, including a request by the Veteran to complete VA Form 21-8940 in support of a claim for TDIU. The Veteran was sent a letter in February 2017, requesting him to complete such form, and to date the Veteran has failed to do so. In May 2018, the Board once again remanded the Veteran’s claim for TDIU for further development. The Veteran failed to provide any information regarding his current employment or provide a completed VA Form 21-8940. VA Form 21-8940 requests information regarding the Veteran’s employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the Veteran left his last job, and whether the Veteran has attempted to obtain employment since he became too disabled to work. The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran’s failure to cooperate. In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158 (a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). Notably, the Court has held that even if an appellate is ignorant of the abandonment provisions of 38 C.F.R. § 3.158 (a), VA regulations are “binding on all who seek to come within their sphere,” regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Hence, the Board has no recourse but to conclude that because of his failure to cooperate the Veteran has abandoned his claim for a TDIU. As such, the Board finds that the appeal must be denied. Id. In making the above determination, the Board acknowledges the Veteran’s valorous combat service; however, based on the record before the Board, entitlement to a grant of a TDIU is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kalisse Anderson The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.